As
recently as two months ago, then-presidential candidate Voyislav
Koshtunitsa denounced the International Criminal Tribunal
for the former Yugoslavia (ICTY) as a political tool lacking
any legitimacy.

Last
week, President Koshtunitsa and his Foreign Minister agreed
that ICTY will be allowed to open an office in Belgrade and
investigate "war crimes" that occurred on Yugoslav
territory or were committed by Yugoslav citizens.

As
anyone who knows any Serbian history might imagine, Prime
Minister Nikola Pashich and King Petar I are rolling over
in their graves right about now. Such an outright violation
of Serbian sovereignty is precisely why they rejected the
Austro-Hungarian ultimatum in 1914, resigning themselves to
a war that crippled the Serbian nation for the rest of the
century. The current government is seen as the restoration
of justice and honor in Serbian politics akin to King Petar’s
restoration of 1903. Yet by allowing the ICTY to set up shop
in downtown Belgrade, they are spitting on King Petar’s memory
and dishonoring themselves.

Well,
history is history, some will say. One cannot always be consistent.
Besides, ICTY is a legitimate, UN court that was set up to
punish those responsible for horrific atrocities of the 1990s
Balkans wars; it was recognized in the 1995 Dayton Agreement
as such, and Serbia is one of the agreement’s co-signers.
Koshtunitsa has an obligation to cooperate with the Tribunal,
regardless of what he thought of it. Politics is the art of
the possible, and right and wrong have little to do with it.

As
usual, nothing can be farther from the truth.

In
the beginning, there was a name. Officially, the court is
called "The International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former
Yugoslavia Since 1 January 1991." Unofficially, the media
and politicians who created it have adopted a shorter, catchier
name: The Hague Tribunal, or just The Hague. Though located
in the administrative capital of the Netherlands, ICTY can
hardly claim to be the international court there. That
honor belongs to the officially established UN International
Court of Justice, or ICJ. Many journalists, politicians, pundits
and even critics of the ICTY have mistakenly identified it
with the ICJ. Needless to say, this association bolsters the
legitimacy of the ICTY on one hand, and erodes the reputation
of the ICJ on the other.

For
while ICJ is a truly legitimate court, set up to adjudicate
disputes between states, ICTY is a body formed in clear breach
of authority by the UN Security Council. Instead of going
through the General Assembly, which would require ratification
and compliance with the UN Charter and numerous tenets of
international law, the United States used the Security Council,
invoking the UN Charter’s Chapter VII, Article 29. That article
states: "The Security Council may establish suchsubsidiary organsas it deems necessary for the
performance of its functions." So ICTY is by definition
a subsidiary organ of the Security Council, not an independent
judiciary body. On top of this, Chapter VII only gives the
Security Council powers to deploy peacekeeping forces in war
zones at the request of member states. It is one thing to
send troops; setting up an Inquisition-style court is quite
another.

The
Tribunal’s purpose is, after all, the prosecution of
war criminals. Its rules of procedure are designed so that
the prosecution dominates the process. The prosecution and
the judges are on the same payroll, and work together. The
chief prosecutor plans and issues indictments as part of a
concerted effort to prove the existence of "genocide"
in the former Yugoslavia. Defense attorneys, on the other
hand, are completely out of the loop. Each works for his own
client, and they often end up trying to blame some other defendant.

According
to the Tribunal’s procedures, defendants are guilty until
proven innocent. Prosecutors, judges and the media do not
mention "defendants" but "indicted war criminals."
This clever wordplay has observers halfway convinced from
the start that the men in question are guilty. Indictment
has become the mark of guilt. The same prison is used for
housing the defendants before, during and after the trials.

Most
"evidence" presented in the court consists of witness
testimonies. Since the witnesses are all anonymous and the
defense is not allowed to cross-examine them, their statements
cannot be verified or challenged in court. Yet if the defense
cannot prove the witnesses are lying, their statements are
considered to be factual truth. When the defense does succeed
in challenging witness statements, the prosecution simply
disavows the witness and carries on. In any US court, a fake
witness would be enough for a jury to have reasonable doubts
and dismiss the charges. Not in ICTY, though. There, there
is no jury. The defense has to prove innocence to judges paid
by the same people who pay the prosecutors. How likely are
they to disagree with the prosecution? The prosecutors are
the real judge, jury and executioner, all in one, accountable
to no one under the sun.

A
notable example is the case of Dragan Opachich, a Serb soldier
captured by the Muslim army in Sarajevo in 1993. He was "Witness
L" at the trial of Dushan Tadich, a Serb accused of running
a death camp at Trnopolye. When Tadich’s defense attorney
discovered that Opachich was beaten by the Muslim secret police
and forced to testify against Tadich (falsely, since he never
saw the man before the trial) Justice Gabrielle Kirk-McDonald
of the United States ordered Opachich returned to Bosnia –
back into the custody of Muslim secret police, the AID. He
languishes in the notorious Zenitsa prison, without any hope
of parole or release. No human rights group, no lawyer, no
international legislative initiative in Bosnia has ever agreed
to hear his case. The living proof of ICTY’s corruption and
duplicity, Opachich is Bosnia’s Man in the Iron Mask. His
only crime is knowing too much about his persecutors.

As
for Tadich, he was sentenced to 20 years. When he tried to
appeal, the court added new accusations to his indictment
and sentenced him to life. Such is justice in the Tribunal
chambers.

There
are hundreds of other examples of mistreated defendants. People
indicted for political purposes, kidnapped from their homes
in the middle of the night, shot while "trying to escape,"
found hanging in their cells, held until their cancers and
heart diseases finished them off – these are the "war
criminals" ICTY is supposed to prosecute. Not one inmate
of Scheveningen dungeons has been proven a war criminal beyond
reasonable doubt.

So
what? Legitimate or not, ICTY is still recognized as part
of the Dayton agreement, and Koshtunitsa’s government is obligated
to respect Dayton and the peace it brought to Bosnia, the
argument goes. As usual, it is mistaken. Koshtunitsa is president
of Yugoslavia, not Serbia. When the Dayton agreement was signed,
the United States was not recognizing Yugoslavia as a state,
so Slobodan Miloshevich signed the pact on behalf of Serbia.
Technically, the president of Serbia is still Milan Milutinovich,
at least until December 23rd this year. As president
of Yugoslavia – which is not a party to the Dayton Agreement,
and is not bound by its articles – Koshtunitsa can very legitimately
refuse to cooperate with ICTY. Whoever becomes the president
of Serbia on December 24th will have to deal with
that particular problem. Until then, the government of Yugoslavia
is not authorized to do so. Of course, this is legalese. Everyone
knows that Miloshevich really run both Serbia and Yugoslavia
in 1995. But that is beside the point. Like all international
agreement, Dayton is not about common sense but about legal
categories. It is definitely open to interpretation, as Bosnia’s
foreign governors have done repeatedly over the past five
years.

Then
there is also the issue of peace in the Balkans depending
on the war crimes trials. This is nonsense, as is the theory
that ICTY is eliminating collective guilt by prosecuting individuals.
Quite the contrary, the notion of collective guilt of their
enemies is deeply rooted in the minds of all warring parties,
and every new indictment by ICTY reinforces that notion. ICTY
successfully refutes its own statements by prosecuting people
on the grounds of command responsibility. If war crimes in
the Balkans were really committed by individuals, why then
is ICTY trying to present them all as having been masterminded
by Miloshevich and his government? Wouldn’t that implicate
the entire Serbian people, who elected this government repeatedly
and thus have partial responsibility? And yet, the indictments
were supposed to exonerate the Serbian people? This logic
is insane.

Those
who survived the wars want justice and vengeance. Those who
have been abused and oppressed under certain political leaders
indicted by ICTY are all too happy to see them taken to Scheveningen
in chains. Croatia’s new regime seems all too happy to send
many of its military officers into the jaws of ICTY. This
is often used as an argument that Croatia’s new leadership
is democratic, and that Yugoslavia needs to do the same. Conveniently
forgotten is the fact that Croatia’s "war criminals"
are mostly loyal to late president Tudjman’s HDZ, and that
for the new president, Stipe Mesich, this is just a splendid
opportunity to conduct a political purge of Tudjman supporters
without any blood on his hands. Of course, Mesich and his
government are perfectly comfortable with the fact that the
Tudjman regime killed or expelled all Serbs from the territory
of today’s Croatia, and have no intention of disavowing these
actions, or offering reparations to their victims. ICTY takes
care of Tudjman’s skeletons in the closet, Croatia gets to
continue being an ethnically pure state, and everyone’s happy
but the Serbs – whose leaders are all indicted by ICTY, by
the way.

And
if all this is not proof enough – or at least reason for some
serious thought – that something is deeply rotten in The Hague,
here is one last and crucial piece of the puzzle. Prima facie
proof that ICTY is nothing but a political tool of The Great
Power, as Voyislav Koshtunitsa once used to say.

In
May of 1999, as hundreds of civilians were dying under NATO
bombs in a clear-cut war of aggression against Yugoslavia
(which NATO leaders admitted, but said it was justified by
the "genocide" in Kosovo – another charge refuted
soon thereafter, but too late to do any good), ICTY indicted
the five top leaders of Yugoslav government for war crimes.
The indictments came at a time when NATO was failing to win
the war and desperately needed a legitimacy boost. After the
armistice in June, several organizations presented evidence
to ICTY prosecutors requesting an investigation into the NATO
aggression. Facing an outburst of rage from NATO leaders,
the prosecutors responded by hastily concluding that there
were no grounds for even investigating NATO for war crimes.
Just so that it is entirely clear, ICTY’s chief financial
contributor (i.e. paymaster) is the US government. US forces
led, masterminded, and executed 90% of the NATO aggression
on Yugoslavia. It is a little hard to expect US leaders to
indict themselves. Politics is, after all, the art of the
possible.

What
that has to do with justice is beyond my comprehension.

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Nebojsa
Malich left his home in Bosnia after the Dayton Accords and
currently resides in the United States. During the Bosnian
War he had exposure to diplomatic and media affairs in Sarajevo,
and had contributed to the Independent. As a historian who
specialized in international relations and the Balkans, Malich
has written numerous essays on the Kosovo War, Bosnia and
Serbian politics, which were published by the Serbian
Unity Congress. His exclusive column for Antiwar.com appears
every Thursday.